5.4.1.1 The purpose of force majeure provisions is to give the Affected Party relief from liability and, if the event continues for a certain period, to give the parties an opportunity to terminate the Contract. The definition of Force Majeure Events (see Section 5.4.1.2) should only include events which, unlike Relief Events, are likely to have a catastrophic effect on either party's (although usually the Contractor's) ability to fulfil its obligations under the Contract. In practice, such events are highly unlikely to occur. As neither party is likely to be in a better position than the other to manage either the occurrence or the effects of force majeure, and the events may continue for a long period of time, such events are given a different treatment from Relief Events and the financial consequences shared.
5.4.1.2 The following is the required definition of Force Majeure Events:
means the occurrence after the date of Contract of:
(a) war, civil war, armed conflict or terrorism; or
(b) nuclear, chemical or biological contamination unless the source or the cause of the contamination is the result of the actions of or breach by the Contractor or its sub-contractors; or
(c) pressure waves caused by devices travelling at supersonic speeds,
which directly causes either party (the "Affected Party") to be unable to comply with all or a material part of its obligations under this Contract, provided that (subject to paragraph 6.2.2 of [Annex 1] (Criminal Damage)) a Criminal Damage Event shall not be considered a Force Majeure Event.
5.4.1.3 Relief for Force Majeure Events applies only to the extent that the Contractor or the Authority is unable to comply with all or a material part of its obligations under the Contract and the parties cannot agree within a limited period (say 6 months) how to resume the Project.
5.4.1.4 The Authority should not be obliged to pay the Contractor any amount simply to service the Contractors' debt obligations in whole or in part, but the parties should recognise that the Contractor may wish to include certain tolerances into its Contract to allow for this. If termination occurs, the Authority will in any event compensate the Contractor for outstanding Senior Debt.110 If termination does not occur, then the parties will be discussing continuation of the Contract against a back drop of such a compensation payment.
___________________________________________________________________
109 This definition should not be expanded without a very careful consideration of the specific issues on the Project concerned, as the effect can be to dilute or undermine agreed areas of risk transfer. It is recognised, however, that there are some obvious sector specific changes that may be needed (for example, certain MOD projects might exclude some of paragraph (a) if it is intended to operate during times of war). The definition may also be narrowed to cope with the fact that paragraph (b) may be inapplicable to environmental projects or projects involving chemical treatment which may be designed to deal with a certain degree of chemical contamination. The NHS and equivalent NI standard form has specific provisions dealing with chemical and biological contamination.
110 Section 21.3.2 (Compensation on Termination for Force Majeure).